Monday, May 19, 2008

Court Upholds anti-Child Porn pandering law

In a world where 6 year olds are being sold bras we get a United States Supreme court decision in US v Williams that essentially makes it a crime to claim to be breaking the law, regardless of whether the law was broken. The story runs like this, originally congress passed a law, Child Pornography Protection Act of 1996 which became inserted into the Federal code as 1 U.S.C 2252A(a)(3)(B).

The opinion of the court in Ashcroft v Free Speech Coalition was that the original prohibited a substantial amount of protected speech. Specifically:

(1) The CPPA is inconsistent with Miller. It extends to images that are not obscene under the Miller standard, which requires the Government to prove that the work in question, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value, 413 U.S., at 24. Materials need not appeal to the prurient interest under the CPPA, which proscribes any depiction of sexually explicit activity, no matter how it is presented. It is not necessary, moreover, that the image be patently offensive. Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards. The CPPA also prohibits speech having serious redeeming value, proscribing the visual depiction of an idea–that of teenagers engaging in sexual activity–that is a fact of modern society and has been a theme in art and literature for centuries. A number of acclaimed movies, filmed without any child actors, explore themes within the wide sweep of the statute’s prohibitions. If those movies contain a single graphic depiction of sexual activity within the statutory definition, their possessor would be subject to severe punishment without inquiry into the literary value of the work. This is inconsistent with an essential First Amendment rule: A work’s artistic merit does not depend on the presence of a single explicit scene. See, e.g., Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Mass., 383 U.S. 413, 419. Under Miller, redeeming value is judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive. See Kois v. Wisconsin, 408 U.S. 229, 231 (per curiam). The CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the obscenity definition. Pp. 6—11.

Basically what the court said in Ashcroft v FSC was that child pornography can't be outlawed if it wasn't made with children, and doesn't violate other forms of obscenity law. However the new law was much more narrowly targeted to outlaw presenting material as being child pornography, whether it the material is or not. More over, the original statute tainted the material in question. That is if material had been claimed to be child pornography, the having it was a crime. So if a book seller sold a copy of Snow White claiming it was about a teen living lustfully with 7 ugly dwarves, and was purchased with that belief, then having the the copy of Snow White itself was criminal. The court overturned both of these provisions.

As often happens the Congress passed fresh legislation aimed at overcoming the defects in the original law. The Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, yet another acronym act, sigh. This statute removed both the tainting, and the criminalization of the images.

The facts of the case are depressingly common, a chat room which was used to swap child pornography had a particularly stupid swapper who thought that the best way to prove he wasn't a Federal Agent was to show everyone that he had actually criminally illegal material. It was exactly the circumstance that the statute was intended to catch: peadophiles swapping actually child pornography and telling each other that that is what is on offer.

What was at issue in this case was whether the statute was overly broad on its face. For a statute to be overturned as overly broad, it has to be proven, in effect, that it invalidates a large amount of protected speech, or allows such selective enforcement as to obviously invite abuse. The standard of substantial amount of speech is intended to set a high bar for invalidating a statute. The reasoning is that if some protected speech is covered, then courts can grant exceptions, but if there is a broad chilling effect, then the statute must go.

The new law made it illegal to engage in activity that "advertises, promotes, presents, distributes, or solicits" material which is intended to make people believe that there is an exchange of child pornography. In the decision the court made some important limitations on the law. First it said that the verbs must be taken together in context. The law cannot be construed to make illegal merely advocating legalization of child pornography. Moreover, in Scalia's decision, material which looks like children having sex, but is not, isn't illegal, because, according to Scalia, it is absurd that reputable companies would want people to believe they had produced objectionable material with children.

This last is a slippery argument, because clearly we do sexualize children, and even "reputable" commerce push sexualization of children. However, this is beside the point, because what was really at issue was whether it could be made a criminal transaction to offer to enage in another criminal transaction, even if the underlying criminal transaction was impossible. The court has held that, yes, offering to do something that is illegal, even if it is impossible to carry it out, is in itself illegal.

Interesting in this decision is the stiffness of the rebuke to the 11th circuit:

What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is. Thus, we have struck down statutes that tied criminal culpability to whether the defendant's conduct was "annoying" or "indecent"--wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings. See Coates v. Cincinnati, 402 U. S. 611, 614 (1971); Reno, supra, at 870-871, and n. 35.

The court decision bludgeons the 11th Circuit particularly hard in saying, first that the basis the lower court decided on was wrong, and then, even if the standard of strict scrutiny was not applied the lower court would have been wrong.

How does this effect Second Life? Not really much. It is already more broadly against the rules to engage in creation of images and acts here than the American Law allows. That is there are plenty of things that are perfectly legal under American law which are against the ToS here. The ToS is also much more stringent about what constitutes advertising than the the revised statute. In limiting the statute in particular ways, in effect pruning away potential vagueness, the Supreme Court left behind the law that Congress probably intended to write, and did so without materially harming the rest of us.